OAR Chapter 440 — Department of Consumer and Business Services, Director's Office

chapter-440OAR Chapter 440Regulation

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Division 1 PROCEDURAL RULES

Or. Admin. R. 440-001-0000 Notice of Rulemaking

(1) Prior to rulemaking to which this rule applies, the Director shall give notice as provided in this rule. This rule applies to rulemaking that carries out any of the following rulemaking authority of the Director:

(a) Rulemaking authority under ORS 705.135;

(b) Rulemaking authority of the Director other than as provided under ORS 705.135, with respect to the Department as a whole;

(c) Rulemaking authority with respect to duties and functions assigned to the Director or the Department by law when the duties and functions are not carried out through an administrative division or staff office created under ORS 705.115.

(2) The rulemaking authority to which this rule applies includes, by way of example only, authority under ORS 646.859 which provides for approval by the Department of signs to be posted by auto rental companies, and authority under 293.445, which governs the refund of moneys by agencies.

(3) The Director shall give notice of an intended action of rulemaking to which this rule applies:

(a) In the Secretary of State's Bulletin referred to in ORS 183.360 prior to the effective date of the intended action as required by ORS 183.335;

(b) By mailing, electronic mailing, or delivering copies of the notice to persons on the mailing list established by the Director under ORS 183.335;

(c) By mailing, electronic mailing, or delivering copies of the notice to the Associated Press and other members of the media who have requested notification or who the Director determines may have an interest in the subject matter of the proposal;

(d) By mailing, electronic mailing, or delivering copies of the notice to persons who the Director determines may have an interest in the subject matter of the proposal.

(e) By mailing, electronic mailing, or delivering copies of the notice to the appropriate state legislators as required by ORS 183.335.

History

  • Statutory/Other Authority: ORS 183.341 & 705.135
  • Statutes/Other Implemented: ORS 183.335
  • DO 2-2006, f. & cert. ef. 5-9-06
  • DO 2-2003, f. 8-15-03, cert. ef. 1-1-04
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 4-1999, f. & cert. ef. 12-10-99
  • IF 1-1990, f. & cert. ef. 4-19-90
  • IF 7-1989(Temp), f. & cert. ef. 9-1-89
Or. Admin. R. 440-001-0005 Model Rules of Procedure

The Model Rules of Procedure, OAR 137-001-0005 through 137-001-0100, in effect on January 1, 2006, as promulgated by the Attorney General of the State of Oregon under the Administrative Procedures Act are adopted as the rules of procedure for rulemaking actions of the Department of Consumer and Business Services except the Workers' Compensation Board and except as otherwise adopted by an administrative division or staff office of the Department created under ORS 705.115.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedures is available from the Office of the Attorney General or the Department of Consumer and Business Services.]

History

  • Statutory/Other Authority: ORS 183.341 & 705.135
  • Statutes/Other Implemented: ORS 183.341
  • DO 1-2006, f. & cert. ef. 2-14-06
  • DO 2-2004, f. & cert. ef. 11-8-04
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DCBS 1-1994, f. & cert. ef. 3-23-94
  • IF 1-1992, f. & cert. ef. 2-13-92
  • IF 6-1989, f. & cert. ef. 9-1-89
Or. Admin. R. 440-001-9001 Division of Financial Regulation Scope of Authority

Whenever any rule, order, document, record or proceeding refers to the Oregon Insurance Division or the Division of Finance and Corporate Securities, the reference is considered to be a reference to the Division of Financial Regulation. The substitution of the Division of Financial Regulation for the Oregon Insurance Division and the Division of Finance and Corporate Securities does not affect any legal rights, responsibilities, or obligations of the Director, Divisions or any licensee or registrant. The substitution of the Division of Financial Regulation for the Oregon Insurance Division and the Division of Finance and Corporate Securities does not affect the rules currently or previously adopted by the Oregon Insurance Division contained in Oregon Administrative Rule chapter 836 or the rules currently or previously adopted by the Division of Finance and Corporate Securities contained in Oregon Administrative Rule chapter 441.

History

  • Statutory/Other Authority: 705.135
  • Statutes/Other Implemented: 705.115
  • DO 3-2016, f. & cert. ef. 11-15-16
  • DO 1-2016(Temp), f. 6-23-16, cert. ef. 6-29-16 thru 12-23-16

Division 5 ACCESS OF PUBLIC RECORDS, FEES FOR RECORD SEARCH AND COPIES OF PUBLIC RECORDS

Or. Admin. R. 440-005-0001 Authority for Rules

The director has adopted OAR 440-005-0001 to 440-005-0030 by the director’s authority under ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 and 731.804.

History

  • Statutory/Other Authority: ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 & 731.804
  • Statutes/Other Implemented: ORS 192.410 - 192.505
  • IF 2-1990, f. & cert. ef. 6-4-90
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89
Or. Admin. R. 440-005-0005 Applicability of Rule

OAR 440-005-0001 to 440-005-0030 apply to all public records of the Department of Consumer and Business Services (department), and govern the application of ORS 192.410 to 192.505 to these records.

History

  • Statutory/Other Authority: ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 & 731.804
  • Statutes/Other Implemented: ORS 192.410 - 192.505
  • DCBS 2-1994, f. 7-8-94, cert. ef. 8-1-94
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89
Or. Admin. R. 440-005-0015 Access to Records

(1) The director, in carrying out responsibilities under ORS 192 as custodian of public records, shall make restrictions and take precautions necessary to protect the integrity of the records and prevent interference with the regular discharge of the department's duties.

(2) Public records of the department may be inspected or examined during the normal working days and hours of the offices of the department at which the records are kept. The inspection or examination shall take place at the main office, a field office, or any other reasonable location designated by the director.

(3) Access to and disclosure of the public records are subject to ORS 192.410 to 192.505, 654.120, 697.732, 706.720, 722.419, 731.264, 731.312, 734.650, 734.830, 744.245 and any other references establishing an exemption to disclosure of public records.

History

  • Statutory/Other Authority: ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 & 731.804
  • Statutes/Other Implemented: ORS 192.430, 192.440, 192.502, 654.120, 697.732, 706.720, 722.419, 731.264 & 731.312
  • DO 2-2010, f. 4-15-10, cert. ef. 5-1-10
  • DCBS 2-1994, f. 7-8-94, cert. ef. 8-1-94
  • IF 2-1990, f. & cert. ef. 6-4-90
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89
Or. Admin. R. 440-005-0020 Requests to Inspect or Obtain Copies of Public Records

(1) A request to inspect or obtain copies of a public record or information from public records may be made in writing, in person, or by phone. Written requests shall include:

(a) Contact information, such as name, mailing address, telephone number, and e-mail address of the requestor.

(b) A sufficiently detailed description of the records requested to allow the department to search for and identify records.

(2) DCBS will maintain the procedure for making public records request on its Web site: http://www.oregon.gov/
DCBS/Pages/public-records.aspx. The procedure includes a contact person for each division and a list of current fees and charges.

History

  • Statutory/Other Authority: ORS 192, 656, 697 & 731
  • Statutes/Other Implemented: ORS 192.430
  • DO 2-2010, f. 4-15-10, cert. ef. 5-1-10
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89
Or. Admin. R. 440-005-0025 Payment for Inspection and Copies of Public Records

(1) A person who is receiving a copy of a public record or information from a public record shall pay for the department's actual cost for:

(a) Staff time necessary to locate and handle the records, to delete material exempt from disclosure and to supervise the inspection by the requester;

(b) Producing the copy or the information; and

(c) Other supplies or services necessary to furnish the copy or information.

(2) If the cost of providing the records is higher than $25, the department will provide a written cost estimate to the requestor. The requestor must confirm whether he or she wants the department to proceed with responding to the request.

(3) The director may reduce or waive payment of the fee for access of a public record if the director determines that the reduction or waiver will aid the effective administration of department operations or if the release of the information benefits the general public.

(4) The director shall not require payment of fees for the first copy of publications, statutes, administrative rules or public records from public libraries, public educational institutions, or from a federal, state, county or city agency participating in a cooperative program with the department or any company or individual who is the subject of documents such as workers' compensation claim files.

(5) The requester shall pay all fees for access of a public record in advance unless later payment is approved by the director.

History

  • Statutory/Other Authority: ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 & 731.804
  • Statutes/Other Implemented: ORS 192.440
  • DO 2-2010, f. 4-15-10, cert. ef. 5-1-10
  • DCBS 2-1994, f. 7-8-94, cert. ef. 8-1-94
  • IF 2-1990, f. & cert. ef. 6-4-90
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89
Or. Admin. R. 440-005-0030 Fees and Miscellaneous Charges

The director establishes fees and miscellaneous charges in agency policy, reviewed periodically to ensure all charges reflect no more than the actual cost of producing and processing. The department posts current fees and charges on its Web site: http://egov.oregon.gov/DCBS/records_request.shtml. This information is also available by calling or writing the department.

History

  • Statutory/Other Authority: ORS 192.430, 192.440, 656.726, 697.732, 731.244, 731.282, 731.284 & 731.804
  • Statutes/Other Implemented: ORS 192.440, 731.282, 731.284 & 731.804
  • DO 2-2010, f. 4-15-10, cert. ef. 5-1-10
  • DO 2-2003, f. 8-15-03, cert. ef. 1-1-04
  • DCBS 2-1994, f. 7-8-94, cert. ef. 8-1-94
  • IF 2-1990, f. & cert. ef. 6-4-90
  • IF 1-1989, f. 6-7-89, cert. ef. 6-15-89

Division 15 CONFLICT OF INTEREST

Or. Admin. R. 440-015-0100 Purpose

(1) These rules implement ORS 705.135(3). The purpose of these rules is to identify the circumstances under which employees of the Department may or may not become indebted to or hold any interest in an entity subject to the regulation of the Department.

(2) These rules also provide for the reporting of such indebtedness or interests by employees for the purpose of preventing or resolving possible conflicts of interest.

(3) These rules are in addition to, and not in lieu of, the provisions of ORS Chapter 244, ORS 731.228, and any other statutes, rules, and policies applicable to indebtedness, financial interests, and conflicts of interest of employees of the Department.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 244 & 705.135
  • DO 1-2010, f. 1-28-10, cert. ef. 2-1-10
Or. Admin. R. 440-015-0105 Definitions

For the purpose of these rules:

(1) “Department” means the Department of Consumer and Business Services.

(2) “Director” means the director of the Department.

(3) “Designated position” means a position in the Department listed or designated under OAR 440-015-0110(2).

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 244 & 705.135
  • DO 1-2010, f. 1-28-10, cert. ef. 2-1-10
Or. Admin. R. 440-015-0110 Indebtedness and Financial Interest of Department Employees

(1) Due to the scope of their authority, and to prevent actual and potential conflicts of interest or the appearance of conflicts of interest, certain employees of the Department holding executive and senior management positions, or positions exercising particular regulatory responsibilities, shall not be or become indebted to, or hold a financial interest in, or engage in business transactions with, entities over which those employees exercise regulatory responsibilities.

(2) Positions subject to section (1) of this rule include, but are not limited to, the Director, the Deputy Director, and the Administrators and Deputy Administrators of the Building Codes Division, Division of Finance and Corporate Securities, Insurance Division, Occupational Safety and Health Division (Oregon OSHA), and Workers’ Compensation Division. The Director, or division administrators subject to the Director’s approval, may designate additional positions as subject to section (1) of this rule. In determining which positions shall be designated pursuant to this section, the Director or administrator shall consider the scope of the responsibilities assigned to the position and the extent to which employee holding the position could influence the regulation of an entity regulated by the Department.

(3) For each designated position, the Director (or administrator, for positions designated by an administrator) shall identify the specific types of entities in which employees holding the position may not hold financial interests or engaged in business transactions, and to which employees holding the position may not become indebted.

(4) Any employee holding a designated position shall disclose any financial interests, business transactions or indebtedness prohibited by this rule, and shall come into compliance with this rule not later than 30 days following the effective date of this rule. The Director may grant extensions to prevent undue hardship, and may grant exceptions in the event of unusual circumstances (such as inheritance), subject to such conditions as the Director shall determine.

(5) Employees newly hired into a designated position shall disclose any financial interests, business transactions or indebtedness prohibited by this rule, and shall promptly divest themselves of any such interests or indebtedness. The Director may allow such employees a reasonable period to accomplish such divestiture to prevent undue hardship, subject to such conditions as the Director shall determine.

(6) Except as provided in this rule, or in ORS 731.228 or any other statutes, rules or policies restricting the indebtedness and interests of employees, and subject to applicable statutes, rules, and policies relating to conflicts of interest and ethics, Department employees may be indebted to or hold a financial interest in an entity regulated by the Department.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 244 & 705.135
  • DO 1-2010, f. 1-28-10, cert. ef. 2-1-10
Or. Admin. R. 440-015-0115 Reporting of Indebtedness and Interests

If the director or a division administrator believes that a Department employee is engaged in a conflict of interest, or is in a situation that has the potential of being or of appearing to be a conflict of interest, in violation of the provisions of ORS Chapter 244, ORS 731.228, or any other statutes, rules, and policies applicable to indebtedness, financial interests, or conflicts of interest of employees of the Department, the Director or administrator may require the employee to complete a financial disclosure form prescribed by the Director. The Director or division administrator may also reassign the employee’s duties to eliminate the potential conflict or take any other reasonable actions necessary to resolve the potential conflict.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 244 & 705.135
  • DO 1-2010, f. 1-28-10, cert. ef. 2-1-10

Division 20 LICENSING

Or. Admin. R. 440-020-0010 Purpose of the Rules

The Department of Consumer and Business Services is required by ORS 25.785 to record an applicant’s social security number in order to issue or renew an occupational, professional, recreational or driver license, certification, permit or registration subject to suspension under 25.750 to 25.783. The purpose of these rules is to establish requirements and procedures for requiring the applicant to provide a social security number and requirements for applicants who have not been issued a social security number by the United States Social Security Administration.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 25.785
  • DO 4-2003, f. 12-31-03, cert. ef. 1-1-04
Or. Admin. R. 440-020-0015 Requirements and Procedures

(1) Except as otherwise set forth in this rule, no division of the Department of Consumer and Business Services will issue or renew an occupational, professional, recreational or driver license, certification, permit or registration subject to suspension under ORS 25.750 to 25.783 unless an applicant provides his or her social security number on the application or renewal form. The applicant need not provide the social security number on the application for renewal if the applicant’s social security number has previously been provided to the agency and is in the record.

(2) If an applicant has not been issued a social security number by the United States Social Security Administration, the Department of Consumer and Business Services will accept a written statement from the applicant to fulfill the requirements of section (1). The applicant need not provide this statement with the application for renewal if the statement has previously been provided to the agency and is in the record. Any written statement submitted must:

(a) Be signed by the applicant

(b) Attest to the fact that no social security number has been issued to the applicant by the United States Social Security Administration

(c) Acknowledge that knowingly supplying false information under this section is a Class A misdemeanor, punishable by imprisonment of up to one year and a fine of up to $6250.

(3) Licenses issued pursuant to OAR chapter 918 are subject to this rule except as otherwise specifically provided in OAR chapter 918.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 25.278
  • DO 4-2003, f. 12-31-03, cert. ef. 1-1-04

Division 45 PREMIUM ASSESSMENT

Or. Admin. R. 440-045-0010 Authority for Rules

The director has adopted OAR 440-045-0010 to 440-045-0030 by the director's authority under ORS 705.135, 656.612, 656.614, and 656.726.

History

  • Statutory/Other Authority: ORS 705.135 & 656.726
  • Statutes/Other Implemented: ORS 656.612 & 656.614
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 2-1999, f. 10-1-99, cert. ef. 1-1-00
Or. Admin. R. 440-045-0015 Applicability of Rule

OAR 440-045-0010 to 440-045-0030 apply to the assessments levied by the director under the authority of ORS 656.612 and 656.614 against insurers' direct earned workers' compensation premiums and the direct earned premium self-insured employers and self-insured employer groups would have paid had they been insured employers in a manner as prescribed in OAR 436, division 085.

History

  • Statutory/Other Authority: ORS 705.135 & 656.612
  • Statutes/Other Implemented: ORS 656.612 & 656.614
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 1-2000, f. 10-11-00, cert. ef. 1-1-01
  • DO 2-1999, f. 10-1-99, cert. ef. 1-1-00
Or. Admin. R. 440-045-0020 Assessment Rate

The assessment to be levied against insurers, self-insured employers and self-insured employer groups for Calendar Year 2026 shall be 9.8 percent of direct earned premium and the direct earned premium self-insured employers and self-insured employer groups would have paid had they been insured employers.

History

  • Statutory/Other Authority: ORS 656.612, 656.726 & 705.135
  • Statutes/Other Implemented: ORS 656.612 & 656.614
  • DO 1-2025, amend filed 10/01/2025, effective 01/01/2026
  • DO 1-2024, amend filed 10/02/2024, effective 01/01/2025
  • DO 1-2023, amend filed 10/13/2023, effective 01/01/2024
  • DO 1-2022, amend filed 10/04/2022, effective 01/01/2023
  • DO 2-2021, amend filed 10/15/2021, effective 01/01/2022
  • DO 2-2020, amend filed 10/06/2020, effective 01/01/2021
  • DO 1-2019, amend filed 10/01/2019, effective 01/01/2020
  • DO 1-2018, amend filed 10/05/2018, effective 01/01/2019
  • DO 2-2017, amend filed 10/19/2017, effective 01/01/2018
  • DO 2-2016, f. 11-1-16, cert. ef. 1-1-17
  • DO 1-2015, f. 10-28-15, cert. ef. 1-1-16
  • DO 1-2014, f. 10-7-14, cert. ef. 1-1-15
  • DO 1-2013, f. 10-2-13, cert. ef. 1-1-14
  • DO 1-2012, f. 9-28-12, cert. ef. 1-1-13
  • DO 1-2011, f. 10-14-11, cert. ef. 1-1-12
  • DO 3-2010, f. 9-24-10, cert. ef. 1-1-11
  • DO 1-2009, f. 10-7-09 cert. ef. 1-1-10
  • DO 2-2008, f. 10-1-08, cert. ef. 1-1-09
  • DO 1-2007, f. 10-4-07, cert. ef. 1-1-08
  • DO 3-2006, f. 10-19-06, cert. ef. 1-1-07
  • DO 1-2005, f. 10-20-05, cert. ef. 1-1-06
  • DO 1-2004, f. 10-21-04 cert. ef. 1-1-05
  • DO 3-2003, f. 10-22-03, cert. ef. 1-1-04
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 3-2001, f. 10-22-01, cert. ef. 1-1-02
  • DO 1-2000, f. 10-11-00, cert. ef. 1-1-01
  • DO 2-1999, f. 10-1-99, cert. ef. 1-1-00
Or. Admin. R. 440-045-0025 Adjustment Reserve Rate

In addition to the assessments established in OAR 440-045-0020, self-insured employers for the Calendar Year 2026 shall be assessed an additional 0.1 percent to fund the Self-Insured Employer Adjustment Reserve. Public self-insured employer groups for the Calendar Year 2026 shall be assessed an additional 0.1 percent to fund the Self-Insured Employer Group Adjustment Reserve. Private self-insured employer groups for the Calendar Year 2026 shall be assessed an additional 0.5 percent to fund the Self-Insured Employer Group Adjustment Reserve.

History

  • Statutory/Other Authority: ORS 656.612, 656.726 & 705.135
  • Statutes/Other Implemented: ORS 656.612 & 656.614
  • DO 1-2025, amend filed 10/01/2025, effective 01/01/2026
  • DO 2-2024, amend filed 10/02/2024, effective 01/01/2025
  • DO 2-2023, amend filed 10/13/2023, effective 01/01/2024
  • DO 2-2022, amend filed 10/05/2022, effective 01/01/2023
  • DO 2-2021, amend filed 10/15/2021, effective 01/01/2022
  • DO 2-2020, amend filed 10/06/2020, effective 01/01/2021
  • DO 1-2019, amend filed 10/01/2019, effective 01/01/2020
  • DO 1-2018, amend filed 10/05/2018, effective 01/01/2019
  • DO 3-2017, amend filed 10/19/2017, effective 01/01/2018
  • DO 2-2016, f. 11-1-16, cert. ef. 1-1-17
  • DO 1-2015, f. 10-28-15, cert. ef. 1-1-16
  • DO 1-2014, f. 10-7-14, cert. ef. 1-1-15
  • DO 1-2013, f. 10-2-13, cert. ef. 1-1-14
  • DO 1-2012, f. 9-28-12, cert. ef. 1-1-13
  • DO 1-2011, f. 10-14-11, cert. ef. 1-1-12
  • DO 3-2010, f. 9-24-10, cert. ef. 1-1-11
  • DO 1-2009, f. 10-7-09 cert. ef. 1-1-10
  • DO 2-2008, f. 10-1-08, cert. ef. 1-1-09
  • DO 1-2007, f. 10-4-07, cert. ef. 1-1-08
  • DO 3-2006, f. 10-19-06, cert. ef. 1-1-07
  • DO 1-2005, f. 10-20-05, cert. ef. 1-1-06
  • DO 1-2004, f. 10-21-04 cert. ef. 1-1-05
  • DO 3-2003, f. 10-22-03, cert. ef. 1-1-04
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 3-2001, f. 10-22-01, cert. ef. 1-1-02
  • DO 1-2000, f. 10-11-00, cert. ef. 1-1-01
  • DO 2-1999, f. 10-1-99, cert. ef. 1-1-00
Or. Admin. R. 440-045-0030 Payment Manner and Intervals

The manner and intervals for payments of the Workers' Compensation Premium Assessment is delegated to the Workers' Compensation Division. OAR 436 division 085 prescribe such manner and intervals.

History

  • Statutory/Other Authority: ORS 705.135 & 656.612
  • Statutes/Other Implemented: ORS 656.612 & 656.614
  • DO 4-2002, f. 10-17-02 cert. ef. 1-1-03
  • DO 2-1999, f. 10-1-99, cert. ef. 1-1-00

Division 55 CONFIDENTIALITY AND INADMISSIBILITY OF MEDIATION COMMUNICATIONS

Or. Admin. R. 440-055-0008 Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Mediations Excluded. Sections (6)–(10) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed;

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;

(c) Mediation in which the only parties are public bodies;

(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential; or

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l), or (o)–(p) of section (9) of this rule.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)–(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties’ agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]

(9) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:

(A) A request for mediation; or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation, or

(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or

(B) Attorney work product prepared in anticipation of litigation or for trial; or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency; or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the director determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under 30.402 or state or federal law requires the terms to be confidential.

(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

[ED. NOTE: Forms referenced are available from the agency.]

History

  • Statutory/Other Authority: ORS 36.224 & 705.135
  • Statutes/Other Implemented: ORS 36.224, 36.228, 36.230 & 36.232
  • DO 4-2003, f. 12-31-03, cert. ef. 1-1-04
Or. Admin. R. 440-055-0010 Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials.This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(4) To the extent mediation communications would otherwise compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)–(j) of section (7) of this rule.

(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither a party to the dispute nor the mediator; and

(B) Is designated by the agency to authorize confidentiality for the mediation; and

(C) is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor s designee is the person who agrees.

(7) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(i) To the extent a mediation communication contains information, the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation as long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(7) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.

(8) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

History

  • Statutory/Other Authority: ORS 36.224
  • Statutes/Other Implemented: ORS 36.230(4)
  • DO 1-2001, f. & cert. ef. 3-22-01

Division 100 JUDGEMENTS, EXECUTION AND GARNISHMENT

Or. Admin. R. 440-100-0010 Appeal Period after Garnishment Challenge Denied

The Department may, at its discretion, utilize garnishment proceedings in accordance with ORS Chapter 18 for the purpose of collecting unpaid debts. If a debtor challenges the garnishment and the department, upon review of the claim, determines such debtor is not entitled to an exemption, the debtor may request a contested case hearing before an administrative law judge of the Office of Administrative Hearings in accordance with 18.902. To be valid, the hearing request must be in writing and must be received by the department within 60 days of the date on the face of the Response to Challenge to Garnishment letter issued by the department.

History

  • Statutory/Other Authority: ORS 705.135
  • Statutes/Other Implemented: ORS 18.902
  • DO 4-2003, f. 12-31-03, cert. ef. 1-1-04

Division 150 Quarantine Time Loss Program

Or. Admin. R. 440-150-0001 Quarantine Time Loss Program

(1) Definitions.

(a) “Employee” means a person working in Oregon and who was employed when they were directed to quarantine or isolate by a public health official or health care provider due to Coronavirus Disease 2019 (COVID-19), or experiencing COVID-19 symptoms and isolating while seeking medical diagnosis, and who is subject to income tax withholding requirements under ORS 316.162.

(b) “Department” means the Department of Consumer and Business Services.

(c) “Director” means the director of the Department.

(d) “Health care provider” has the meaning given that term in ORS 433.443(1)(b).

(e) “Local public health authority” has the meaning given that term in ORS 431.003.

(f) “Quarantine” has the meaning given that term in ORS 433.001.

(g) “Isolation or isolate” has the meaning given that term in ORS 433.001.

(h) “Public health officer” means an individual employed by or under contract with a state or local public health authority or a tribe who has the authority to direct or order that an individual quarantine or isolate.

(i) “State public health authority” means the Oregon Health Authority, Public Health Division.

(j) “Tribe” means a federally recognized Oregon tribe.

(k) “Qualified employee” means an employee eligible to receive quarantine time loss payments under sections (2) and (3) of this administrative rule.

(2) Quarantine Time Loss Payments:

(a) A qualified employee may claim quarantine time loss payments of $120 per day, up to 10 days.

(b) Payments are intended to reimburse the qualified employee for time missed when the employee would otherwise have worked.

(A) If an employee would otherwise have been scheduled to work for part of a day, it shall be considered a whole day scheduled for work for purposes of reimbursement under this section.

(B) A standard work week is five days a week, eight hours a day totaling 40 hours a week. Employees working a non-standard work week will calculate the hours scheduled for the non-standard work week and convert the days otherwise scheduled for work to a standard work week.

(3) Qualifications. To qualify for Quarantine Time Loss payments, an employee must attest:

(a) To being directed by a public health officer or health care provider to quarantine or isolate, or experiencing COVID-19 symptoms and isolating while seeking medical diagnosis;

(b) To being in isolation or quarantine on or after the date the program begins;

(c) To the employee’s inability to work because the employee is in quarantine or isolated pursuant to section (3)(a) of this rule;

(d) That the employee is not currently receiving or seeking time loss payments through an active worker’s compensation claim related to the employee’s COVID-19 status covering the same time period for which the employee is seeking payment under this rule;

(e) That the employee is not seeking or receiving unemployment benefits covering the same time period for which the employee is seeking payment under this rule;

(f) That the employee is not seeking or receiving any other benefit for time lost due to isolation or quarantine from any other Oregon program, or any other state’s quarantine time loss program, or similar program, covering the same time period for which the employee is seeking payment under this rule;

(g) That the employee is not seeking or receiving vacation leave, sick leave or any other form of paid leave provided by the employer covering the same time period for which the employee is seeking payment under this rule;

(h) That the employee is not furloughed or laid-off from the employer covering the same time period for which the employee is seeking payment under this rule;

(i) That the employee:

(A) Had federal adjusted gross income of less than $60,000 in tax year 2019 or tax year 2020 for individual filing status ($120,000 federal adjusted gross income if filing joint filing status), as shown on a filed 2019 or 2020 Oregon return, and, based on income received in tax year 2020 or tax year 2021 as of the date of application, estimates gross income of less than $60,000 for individual filing status ($120,000 gross income if filing joint filing status);

(B) Had federal adjusted gross income greater than $60,000 in tax year 2019 or tax year 2020 for individual filing status ($120,000 federal adjusted gross income if filing joint filing status) and, based on income received in tax year 2020 or tax year 2021 as of the date of application, estimates gross income of less than $60,000 in tax year 2020 or tax year 2021 for individual filing status ($120,000 gross income if filing joint filing status); or

(C) Was not required to file an Oregon income tax return for tax year 2019 or tax year 2020, and, based on income received in tax year 2020 or tax year 2021 as of the date of application, estimates gross income of less than $60,000 for individual filing status ($120,000 gross income if filing joint filing status);

(j) That the employee has provided notice to the employee’s employer consistent with other leave policies of the employer; and

(k) To one or more of the following:

(A) The employee’s employer(s) claimed exemption from the paid emergency COVID-19 sick leave provisions of the Families First Coronavirus Relief Act (FFCRA) and has provided no COVID-19 sick leave benefits for the calendar year 2020;

(B) The employee’s employer(s) is not subject to the provisions of the FFCRA and has provided no COVID-19 sick leave benefits for the calendar year 2020; or

(C) The employee has exhausted any COVID-19 sick leave benefits any of the employee’s employers provided for quarantine or isolation purposes during calendar year 2020; or

(D) The employee’s employer has provided no COVID-19 sick leave benefits for the calendar year 2021.

(4) Application.

(a) A qualifying employee must apply to the Department of Consumer and Business Services, in the time, form and manner provided by the department and must:

(A) Identify the public health officer or health care provider issuing the directive to isolate or quarantine and;

(B) List the period of isolation or quarantine in the application;

(C) Provide the name of all employers for which Quarantine Time Loss payments are requested in the application;

(D) Authorize the release of any information from a state or local public health authority, tribe, or health care provider necessary to verify information in the application; and

(E) Agree to reimburse the State of Oregon the amount of any Quarantine Time Loss payments received, if the Department of Consumer and Business Services determines upon audit that the information contained in the employee’s application was inaccurate, false or fraudulent, the employee exceeded the income thresholds for the calendar year, or otherwise did not meet the qualifications to which the employee attested in the application.

(b) An employee whose claim has been denied because the department determined that the employee is not a qualifying employee due to an incomplete application may reapply for program benefits. An employee whose application is denied due to exceeding income limits, or other reasons, will not be accepted.

(5) Administration of the Quarantine Time Loss Program.

(a) The Oregon Legislature appropriated $30 million dollars to fund the Quarantine Time Loss program to be administered by the Department of Consumer and Business Services. The funds must be expended not later than December 31, 2021, under federal law..

(b) The Department of Consumer and Business Services can accept additional funding from the Oregon Legislature for program administration purposes.

(c) Claims for the Quarantine Time Loss program will be paid in the order received by the department until the funds are expended in full, after administrative costs are reimbursed.

(d) The Department of Consumer and Business Services may stop accepting program applications for reasons as determined by the director, including but not limited to termination of a state of emergency proclamation under ORS 401.165.

(e) The Department of Consumer and Business Services may enter into an interagency agreement with any other state agency to assist in carrying out the Quarantine Time Loss program.

(f) Agencies who enter into an agreement with the department under section (5)(b) of this rule may recover administrative costs from the funds appropriated by the legislature to the program.

(g) The department and any agency with which it has an agreement under section 5(b) of this rule may keep information obtained as part of the Quarantine Time Loss program from public disclosure to the extent allowed under the Public Records Laws, ORS 192.311 to 192.431.

(6) Payment of benefits.

(a) An employee who has received Quarantine Time Loss payments previously is not eligible to reapply.

(b) Benefits are payable only to the extent that moneys are available in the Quarantine Time Loss program for that purpose.

(7) Recovery of overpaid benefits.

(a) If the director of the Department of Consumer and Business Services determines that an individual received any benefits under this rule to which the individual is not entitled because the individual, made or caused to be made a false statement or misrepresentation of a material fact, or failed to disclose a material fact, the individual is liable to repay the amount of benefits to the director for the Coronavirus Relief Fund.

(b) Any amount subject to recovery under this section may be collected by the director in a civil action against the individual brought in the name of the director.

(c) In any case in which the director may bring a civil action for collection of benefits obtained through false statements or misrepresentations, the director may instead issue a warrant for the amount to be repaid, together with the cost of collection from the date when the benefits were received, pursuant to ORS 705.175.

History

  • Statutory/Other Authority: ORS 82.010, ORS 293.550 & ORS 705.135
  • Statutes/Other Implemented: ORS 293.55
  • DO 1-2021, adopt filed 03/05/2021, effective 03/14/2021
  • DO 1-2020, temporary adopt filed 09/15/2020, effective 09/15/2020 through 03/13/2021

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